CHAPTER V.

THE RIGHT OF LIFE AND DEATH.

IT MAY be asked how individuals who have no right to dispose of their own lives can transmit to the sovereign this right which they do not possess. The question appears hard to solve only because it is badly stated. Every man has a right to risk his own life in order to preserve it. Has it ever been said that one who throws himself out of a window to escape from a fire is guilty of suicide? Has this crime, indeed, ever been imputed to a man who perishes in a storm, although, on embarking, he was not ignorant of the danger?

The social treaty has as its end the preservation of the contracting parties. He who desires the end desires also the means, and some risks, even some losses, are inseparable from these means. He who is willing to preserve his life at the expense of others ought also to give it up for them when necessary. Now, the citizen is not a judge of the peril to which the law requires that he should expose himself; and when the prince has said to him: "It is expedient for the State that you should die,” he ought to die, since it is only on this condition that he has lived in security up to that time, and since his life is no longer merely a gift of nature, but a conditional gift of the State.

The penalty of death inflicted on criminals may be regarded almost from the same point of view; it is in order not to be the victim of an assassin that a man consents to die if he becomes one. In this treaty, far from disposing of his own life, he thinks only of securing it, and it is not to be supposed that any of the contracting parties contemplates at the time being hanged. Moreover, every evil-doer who attacks social rights becomes by his crimes a rebel and a traitor to his country; by violating its laws he ceases to be a member of it, and even makes war upon it. Then the preservation of the State is incompatible with his own-one of the two must perish; and when a guilty man is executed,

it is less as a citizen than as an enemy. The proceedings and the judgment are the proofs and the declaration that he has broken the social treaty, and consequently that he is no longer a member of the State. Now, as he has acknowledged himself to be such, at least by his residence, he ought to be cut off from it by exile as a violator of the compact, or by death as a public enemy; for such an enemy is not a moral person, he is simply a man; and this is a case in which the right of war is to slay the vanquished.

But, it will be said, the condemnation of a criminal is a particular act. Granted; but this condemnation does not belong to the sovereign; it is a right which that power can confer, though itself unable to exercise it. All my ideas are connected, but I could not expound them all at once.

1 Again, the frequency of capital punishments is always a sign of weakness or indolence in the government. There is no man so worthless that he cannot be made good for something. We have a right to kill, even for example's sake, only those who cannot be preserved without danger.

As regards the right to pardon or to exempt a guilty man from the penalty imposed by the law and inflicted by the judge, it belongs only to a power which is above both the judge and the law, that is to say, the sov ereign; still its right in this is not very plain, and the occasions for exercising it are very rare. In a wellgoverned State there are few punishments, not because many pardons are granted, but because there are few criminals; the multitude of crimes insures impunity when the State is decaying. Under the Roman Republic neither the Senate nor the consuls attempted to grant pardons; the people even did not grant any, although they sometimes revoked their own judgments. Frequent pardons proclaim that crimes will soon need them no longer, and every one sees to what that leads. But 1 feel my heart murmuring and restraining my pen; let us leave these questions to be discussed by the just man who has not erred, and who never needed pardon himself.

CHAPTER VI.

THE LAW.

BY THE Social compact we have given existence and life to the body politic; the question now is to endow it with movement, and will by legislation. For the original act by which this body is formed and consolidated determines nothing in addition as to what it must do for its own preservation.

What is right and conformable to order is such by the nature of things, and independently of human conventions. All justice comes from God, he alone is the source of it: but could we receive it direct from so lofty a source, we should need neither government nor laws Without doubt there is a universal justice emanating from reason alone; but this justice, in order to be admitted among us, should be reciprocal. Regarding things from a human standpoint, the laws of justice are inoperative among men for want of a natural sanction; they only bring good to the wicked and evil to the just when the latter observe them with every one, and no one observes them in return. Conventions and laws, then, are necessary to couple rights with duties and apply justice to its object. In the state of nature, where everything is in common, I owe nothing to those to whom I have promised nothing; I recognize as belonging to others only what is useless to me. This is not the case in the civil state, in which all rights are determined by law.

But then, finally, what is a law? So long as men are content to attach to this word only metaphysical ideas, they will continue to argue without being understood; and when they have stated what a law of nature is, they will know no better what a law of the State is.

I have already said that there is no general will with reference to a particular object. In fact, this particular object is either in the State or outside of it. If it is outside of the State, a will which is foreign to it is not general in relation to it; and if it is within the State, it forms part of it; then there is formed between the whole

and its part a relation which makes of it two separate beings, of which the part is one, and the whole, less this same part, is the other. But the whole, less one part, is not the whole, and so long as the relation subsists, there is no longer any whole, but two unequal parts; whence it follows that the will of the one is no longer general in relation to the other.

But when the whole people decree concerning the whole people, they consider themselves alone; and if a relation is then constituted it is between the whole object under one point of view and the whole object under another point of view, without any division at all. Then the matter respecting which they decree is general like the will that decrees. It is this act that I call a law.

When I say that the object of the laws is always general, I mean that the law considers subjects collectively, and actions as abstract, never a man as an individual nor a particular action] Thus the law may indeed decree that there shall be privileges, but cannot confer them on any person by name; the law can create several classes of citizens, and even assign the qualifications which shall entitle them to rank in these classes, but it cannot nominate such and such persons to be admitted to them; it can establish a royal government and a hereditary succession, but cannot elect a king or appoint a royal family; in a word, no function which has reference to an individual object appertains to the legislative power.7

From this standpoint we see immediately that it is no longer necessary to ask whose office it is to make laws, since they are acts of the general will; nor whether the prince is above the laws, since he is a member of the State; nor whether the law can be unjust, since no one is unjust to himself; nor how we are free and yet subject to the laws, since the laws are only registers of our wills.

We see, further, that since the law combines the universality of the will with the universality of the object, whatever any man prescribes on his own authority is not a law; and whatever the sovereign itself prescribes respecting a particular object is not a law, but a decree, not an act of sovereignty, but of magistracy.

I therefore call any State a republic which is governed

by laws, under whatever form of administration it may be; for then only does the public interest predominate and the commonwealth count for something. Every legitimate government is republican; * I will explain hereafter what government is.

Laws are properly only the conditions of civil association. The people, being subjected to the laws, should be the authors of them; it concerns only the associates to determine the conditions of association. But how will they be determined? Will it be by a common agreement, by a sudden inspiration? Has the body politic an organ for expressing its will? Who will give it the foresight necessary to frame its acts and publish them at the outset? Or how shall it declare them in the hour of need? How would a blind multitude, which often knows not what it wishes because it rarely knows what is good for it, execute of itself an enterprise so great, so difficult, as a system of legislation? Of themselves, the people always desire what is good, but do not always discern it. (The general will is always right, but the judgment which guides it is not always enlightened.) It must be made to see objects as they are, sometimes as they ought to appear; it must be shown the good path that it is seeking, and guarded from the seduction of private interests; it must be made to observe closely times and places, and to balance the attraction of immediate and palpable advantages against the danger of remote and concealed evils. Individuals see the good which they reject; the public desire the good which they do not see. All alike have need of guides. The former must be compelled to conform their wills to their reason; the people must be taught to know what they require. Then from the pub. lic enlightenment results the union of the understanding and the will in the social body; and from that the close co-operation of the parts, and, lastly, the maximum power of the whole. Hence arises the need of a legislator.

*I do not mean by this word an aristocracy or democracy only, but in general any government directed by the general will, which is the law. To be legitimate, the government must not be combined with the sovereign power, but must be its minister; then monarchy itself is a republic. This will be made clear in the next book.